Opinion 91-19

This
opinion represents the views of the Office of the State
Comptroller at the time it was rendered. The opinion may no
longer represent those views if, among other things, there have
been subsequent court cases or statutory amendments that bear on
the issues discussed in the opinion.

FIRE DISTRICTS -- Powers and Duties (authority to make gift to
fire company); (authority to accept gift of firefighting
equipment)
FIRE COMPANY -- Powers and Duties (authority of fire district
to make gift to fire company)
CONSTITUTIONAL LAW -- Gifts and Loans (authority of fire
district to make gift to fire company)

TOWN LAW, §176(13); STATE CONSTITUTION, Article VIII, §1: A
fire district may not make a gift to a fire company of an
amount equal to the cost of firefighting equipment previously
given as an unconditional gift by a fire company to the fire
district.

This is in response to your letter concerning firefighting
equipment given to the fire district by a fire company. The
fire company originally had purchased the equipment with moneys
it received from a criminal defendant in an arson case as part
of a plea bargaining arrangement. You informed us that the
gift was given to the district unconditionally. The criminal
conviction has now been overturned and the company was directed
to repay the moneys to the defendant. The company has
requested that the fire district, in turn, pay back to the
company an amount equal to the cost of the firefighting
equipment. You ask whether the fire district may give to the
fire company the cash equivalent of the value of the equipment
donated.

Fire districts have those powers expressly authorized by
statute and those powers necessarily implied therefrom (see
Town Law, §176[21]). Town Law, §176(13) authorizes fire
districts to purchase apparatus and equipment for the
extinguishment and prevention of fires. Although section 176
does not expressly authorize a fire district to accept gifts of
firefighting equipment (cf. Town Law, §176[14], relative to
acquisition by gift of real property by a fire district), this
Office has previously concluded that the power to purchase
firefighting equipment and apparatus necessarily implies the
power to accept such items as a gift (see e.g. 23 Opns St Comp,
1967, p 528).

In order to effectuate an inter vivos gift, there generally
must be an intention on the part of the donor to make the gift,
delivery of the gift such as to vest the donee with dominion
and control of the property with intent to transfer ownership,
and acceptance of the gift by the donee (see, generally, In Re
Szabo's Estate, 10 NY2d 94, 217 NYS2d 593; 62 NY Jur 2d, Gifts,
§13). It is a general rule that once an unconditional gift is
validly executed, it is not revocable in the absence of fraud
(see, e.g., Saunders v Regeer, 50 Misc 2d 850, 271 NYS2d 788;
62 NY Jur 2d, Gifts, §§56, 57). Accordingly, once the
unconditional gift of firefighting equipment was executed in this instance, the equipment became
fire district property and neither the equipment nor its cash
equivalent may be returned to the donor fire company unless the
fire district is itself authorized to make a gift back to the
fire company (see 33 Opns St Comp, 1977, p 102).

Article VIII, §1 of the State Constitution prohibits
counties, towns, villages, cities and school districts from
making gifts or loans of their money or property to or in aid
of any individual, or private corporation, association or
undertaking. Fire districts, however, are public corporations
distinct from the towns in which they are located (General
Construction Law, §66; Town Law, §174[7]) and are not named in
article VIII, §1. Therefore, there is no express
constitutional bar to a fire district making a gift to a fire
company. Even so, a fire district is precluded from making a
gift under these circumstances. As noted, a fire district only
has those powers expressly or by necessary implication granted
by statute. There is no express or implied statutory authority
for a fire district to make a gift of fire district property to
a private corporation or association, such as a fire company
(see, e.g., 1978 Opns St Comp No. 78-658, unreported).
Accordingly, in our opinion, the fire district may not make a
gift back to the fire company of an amount equal to the cost of
firefighting equipment previously given unconditionally by a
fire company to the fire district.

May 20, 1991
Joseph H. Pond, Esq., Attorney at Law
Woodbourne Fire District